United States v. Bergman, 75 Cr. 785.

• Decision Date: 17 June 1976
• Docket Number: No. 75 Cr. 785.,75 Cr. 785.
• Parties: UNITED STATES of America, v. Bernard BERGMAN, Defendant.
• Court: U.S. District Court — Southern District of New York

416 F. Supp. 496

UNITED STATES of America, v. Bernard BERGMAN, Defendant.

No. 75 Cr. 785.

United States District Court, S. D. New York.

June 17, 1976.

Robert B. Fiske, Jr., U. S. Atty., S. D. N. Y., New York City, for U. S.; Jeremy G. Epstein, Asst. U. S. Atty., New York City, of counsel.

Nathan Lewin, Jamie S. Gorelick, Miller, Cassidy, Larroca & Lewin, Washington, D. C., Monroe H. Freedman, East Hills, N. Y., Gustave Newman, New York City, for defendant.

SENTENCING MEMORANDUM

FRANKEL, District Judge.

Defendant is being sentenced upon his plea of guilty to two counts of an 11-count indictment. The sentencing proceeding is unusual in some respects. It has been the subject of more extensive submissions, written and oral, than this court has ever received upon such an occasion. The court has studied some hundreds of pages of memoranda and exhibits, plus scores of volunteered letters. A broad array of issues has been addressed. Imaginative suggestions of law and penology have been tendered. A preliminary conversation with counsel, on the record, preceded the usual sentencing hearing. Having heard counsel again and the defendant speaking for himself, the court postponed the pronouncement of sentence for further reconsideration of thoughts generated during the days of studying the briefs and oral pleas. It seems fitting now to report in writing the reasons upon which the court concludes that defendant must be sentenced to a term of four months in prison.¹

I. Defendant and His Crimes

Defendant appeared until the last couple of years to be a man of unimpeachably high character, attainments, and distinction. A doctor of divinity and an ordained rabbi, he has been acclaimed by people around the world for his works of public philanthropy, private charity, and leadership in educational enterprises. Scores of letters have come to the court from across this and other countries reporting debts of personal gratitude to him for numerous acts of extraordinary generosity. (The court has also received a kind of petition, with fifty-odd signatures, in which the signers, based upon learning acquired as newspaper readers, denounce the defendant and urge a severe sentence. Unlike the pleas for mercy, which appear to reflect unquestioned facts inviting compassion, this document should and will be disregarded.) In addition to his good works, defendant has managed to amass considerable wealth in the ownership and operation of nursing homes, in real estate ventures, and in a course of substantial investments.

Beginning about two years ago, investigations of nursing homes in this area, including questions of fraudulent claims for Medicaid funds, drew to a focus upon this defendant among several others. The results that concern us were the present indictment and two state indictments. After extensive pretrial proceedings, defendant embarked upon elaborate plea negotiations with both state and federal prosecutors. A state guilty plea and the instant plea were entered in March of this year. (Another state indictment is expected to be dismissed after defendant is sentenced on those to which he has pled guilty.) As part of the detailed plea arrangements, it is expected that the prison sentence imposed by this court will comprise the total covering the state as well as the federal convictions.²

For purposes of the sentence now imposed, the precise details of the charges, and of defendant's carefully phrased admissions of guilt, are not matters of prime importance. Suffice it to say that the plea on Count One (carrying a maximum of five years in prison and a $10,000 fine) confesses defendant's knowing and wilful participation in a scheme to defraud the United States in various ways, including the presentation of wrongfully padded claims for payments under the Medicaid program to defendant's nursing homes. Count Three, for which the guilty plea carries a theoretical maximum of three more years in prison and another $5,000 fine, is a somewhat more "technical" charge. Here, defendant admits to having participated in the filing of a partnership return which was false and fraudulent in failing to list people who had bought partnership interests from him in one of his nursing homes, had paid for such interests, and had made certain capital withdrawals.

The conspiracy to defraud, as defendant has admitted it, is by no means the worst of its kind; it is by no means as flagrant or extensive as has been portrayed in the press; it is evidently less grave than other nursing-home wrongs for which others have been convicted or publicized. At the same time, the sentence, as defendant has acknowledged, is imposed for two federal felonies including, as the more important, a knowing and purposeful conspiracy to mislead and defraud the Federal Government.

II. The Guiding Principles of Sentencing

Proceeding through the short list of the supposed justifications for criminal sanctions, defense counsel urge that no licit purpose could be served by defendant's incarceration. Some of these arguments are plainly sound; others are not.

The court agrees that this defendant should not be sent to prison for "rehabilitation." Apart from the patent inappositeness of the concept to this individual, this court shares the growing understanding that no one should ever be sent to prison for rehabilitation. That is to say, nobody who would not otherwise be locked up should suffer that fate on the incongruous premise that it will be good for him or her. Imprisonment is punishment. Facing the simple reality should help us to be civilized. It is less agreeable to confine someone when we deem it an affliction rather than a benefaction. If someone must be imprisoned — for other, valid reasons — we should seek to make rehabilitative resources available to him or her. But the goal of rehabilitation cannot fairly serve in itself as grounds for the sentence to confinement.³

Equally clearly, this defendant should not be confined to incapacitate him. He is not dangerous. It is most improbable that he will commit similar, or any, offenses in the future. There is no need for "specific deterrence."

Contrary to counsel's submissions, however, two sentencing considerations demand a prison sentence in this case:

First, the aim of general deterrence, the effort to discourage similar wrongdoing by others through a reminder that the law's warnings are real and that the grim consequence of imprisonment is likely to follow from crimes of deception for gain like those defendant has admitted.

Second, the related, but not identical, concern that any lesser penalty would, in the words of the Model Penal Code, § 7.01(1)(c), "depreciate the seriousness of the defendant's crime."

Resisting the first of these propositions, defense counsel invoke Immanuel Kant's axiom that "one man ought never to be dealt with merely as a means subservient to the purposes of another."⁴ In a more novel, but equally futile, effort, counsel urge that a sentence for general deterrence "would violate the Eighth Amendment proscription against cruel and unusual punishment." Treating the latter point first, because it is a short subject, it may be observed simply that if general deterrence as a sentencing purpose were now to be out-lawed, as against a near unanimity of views among state and federal jurists, the bolt would have to come from a place higher than this.⁵

As for Dr. Kant, it may well be that defense counsel mistake his meaning in the present context.⁶ Whether or not that is so, and without pretending to authority on that score, we take the widely accepted stance that a criminal punished in the interest of general deterrence is not being employed "merely as a means * * *." Reading Kant to mean that every man must be deemed more than the instrument of others, and must "always be treated as an end in himself,"⁷ the humane principle is not offended here. Each of us is served by the enforcement of the law — not least a person like the defendant in this case, whose wealth and privileges, so long enjoyed, are so much founded upon law. More broadly, we are driven regularly in our ultimate interests as members of the community to use ourselves and each other, in war and in peace, for social ends. One who has transgressed against the criminal laws is certainly among the more fitting candidates for a role of this nature. This is no arbitrary selection. Warned in advance of the prospect, the transgressor has chosen, in the law's premises, "between keeping the law required for society's protection or paying the penalty."⁸

But the whole business, defendant argues further, is guesswork; we are by no means certain that deterrence "works." The position is somewhat overstated; there is, in fact, some reasonably "scientific" evidence for the efficacy of criminal sanctions as deterrents, at least as against some kinds of crimes.⁹ Moreover, the time is not yet here when all we can "know" must be quantifiable and digestible by computers. The shared wisdom of generations teaches meaningfully, if somewhat amorphously, that the utilitarians have a point; we do, indeed, lapse often into rationality and act to seek pleasure and avoid pain.¹⁰ It would be better, to be sure, if we had more certainty and precision. Lacking these comforts, we continue to include among our working hypotheses a belief (with some concrete evidence in its support) that crimes like those in this case — deliberate, purposeful, continuing, non-impulsive, and committed for profit — are among those most likely to be generally deterrable by sanctions most shunned by those exposed to temptation.¹¹

The idea of avoiding depreciation of the seriousness of the offense implicates two or three thoughts, not always perfectly clear or universally agreed upon, beyond the idea of deterrence. It should be proclaimed by the court's judgment that the offenses are grave, not minor or purely technical. Some attention must be paid to the demand for equal justice; it will...